On The Employer’s Responsibility For Victimization Caused By A Third Party To The Labor Service Provider

With the development of market economy and society,labor activities are becoming more and more active.In individual labor activities,labor providers suffer more and more disputes.The balance between the protection of rights and interests of labor providers and the freedom of action of employers has become one of the tasks of civil legislation.Article 1192(2)of the Civil Code stipulates the liability of the employer when the labor provider suffers the third party tort in the personal labor relationship,and modifies this liability into "compensation".It has undergone profound changes compared with the structure of the liability system of the employer in the past legislation,and has its distinctive features compared with the legislative mode of comparative law.If a third party causes damage to the provider during the provision of personal service,the principle of liability of the employer’s liability is also different from the past.The research on the principle of liability of the employer’s compensation liability is beneficial to accurately grasp the composition and responsibility of the employer’s liability,and then clarify the normative intent of this article.In the principle of imputation,there are mainly several viewpoints: fault-free liability,fault-free liability and fair liability.No-fault liability and fault liability cannot be applied in the context of Article 1192(2)of the Civil Code,which violates the legislative purpose and normative intent of the employer’s liability stipulated in this article.The imputation principle of the employer’s compensation liability stipulated in Article 1192(2)of the Civil Code belongs to the fair liability,and the nature of the liability belongs to the no-fault employer’s sharing of the damage to the labor provider,rather than the so-called tort liability or "special tort liability",which does not contain the meaning of condemnation to the employer.Through the exploration of the legislative purpose and the study of the evolution of legislation on personnel liability in our country,it can be determined that lawmakers should give consideration to the basic position of preventing the burden of non-fault personnel under personal labor relationship while strengthening the protection of rights and interests of labor providers in personal labor activities.In terms of the constitution of the employer’s liability,in addition to the requirement of the existence of personal labor relations,the provider of labor service during the provision of labor service suffered by a third party infringement,the third party’s behavior constitutes an infringement,but also requires the employer no fault,can apply the article of the employer’s liability.Clause 2 of Article 1192 of the Civil Code does not clearly stipulate that the employer is subjectively faultless in the personal labor relationship.According to the investigation of the compilation process of the Civil Code and the relatively authoritative legislative interpretation of the Commission of Legal Affairs,the employer in Clause 2 of this article should be faultless for the fact that the labor provider is infringed by a third party.Article 1192 of the Civil Code should not be applied when the employer is at fault.It may be a liability bearing scheme to regard the fault of the employer as the condition that the employer and the third party in tort form not true joint and several liability.In terms of the subject identity,the scope of labor service provider in Article 1192 of the Civil Code should be expanded.The labor service provider not only includes the labor service provider who provides personal service as clearly stipulated in the law,but also includes the labor service provider who actually forms a labor relationship with the employer,such as the unit or enterprise.The latter is not protected by Article 1191 of the Civil Code and the Industrial Injury Insurance Ordinance,and therefore the scope of service providers and employers should be expanded.As for the judgment of "period of providing labor service",there are subjective theory,objective theory and combination of subjective and objective theory in the academic circle.Therefore,a comprehensive analysis should be made from the standpoint of combination of subjective and objective,so as to avoid the consequences of excessive mechanical or subjective judgment that may cause undue damage to the rights and interests of one party.In terms of liability bearing,the form of the employer’s liability no longer forms an unreal joint liability with all the tort liability that the third party should bear.The scope of compensation for the employer without fault can refer to the fault degree of the labor provider and the economic situation of the parties,but the compensation liability of the natural person and the employer without fault should be lower than the tort liability of the third party.As for the unit of employers,it is appropriate to require them to undertake higher compensation responsibility.The employer’s compensation liability is only for the personal damage of the labor provider,excluding the property damage it may suffer.At the same time,the law also endows the employer with the right of recourse.After assuming the compensation responsibility,the employer has the right to recourse to the third party of infringement.In terms of liability,many courts still hold the position of paragraph 1 of Article 11 of the Judicial Interpretation of Compensation for Personal Injury in 2003,and consider the relationship between the employer and the third party in tort as not true joint liability in paragraph 2 of Article 1192 of the Civil Code.Sorting out the normative content of this article is also helpful to correct some misunderstandings in the cases of the dispute over the liability of the labor provider,so as to better define the legal relationship,identify the scope of the employer’s responsibility and fully protect the labor provider.